Moe v. Becher , 146 Wash. 128 ( 1927 )

This action was brought to quiet title to, and for possession of, certain real property. The defendant also claimed title and right to possession. The cause was tried to the court without a jury and resulted in findings of fact, conclusions of law and judgment confirming the defendant's title and her right to possession. The plaintiff appeals.

The facts are these: Antone E. Wolter and Marguerite Wolter, his wife, were the owners of lot 14, in block 581, in the Mitchell Land and Improvement Company's First Addition to the city of Everett, upon which there was a small dwelling house and in which they lived with their three minor children. During the early winter of 1923, Mr. Wolter went to Los Angeles, California, where he found employment. Shortly after his departure from this state, the appellant in this case, Edward C. Moe, brought an action against him, and jurisdiction was obtained by leaving a copy of the summons and complaint with Mrs. Wolter at their Everett residence. Mr. Wolter, through a Los Angeles attorney, called attention to the attorney for Mr. Moe, in that case, that he was then a resident of Los Angeles. No regard appears to have been given this letter, and judgment was taken against Mr. Wolter by default for the sum of $2,643.70. This judgment was entered January 24, 1924.

On February 5, 1924, Mrs. Wolter, who was then with the three minor children living in the Everett home, executed and filed a declaration of homestead. Thereafter, execution was levied upon the property and it was sold under the judgment. Mr. Wolter returned from California, prior to the time that the declaration of homestead was filed. He made an unsuccessful effort to have the judgment against him vacated. On February 27, 1924, the respondent purchased the property from the Wolters and went into possession. At the time of the purchase there was a mortgage upon it in the sum of eight hundred and fifty dollars. This was assumed, as a part of the purchase price, and paid. The respondent also purchased the furniture in the house, the total purchase price for the house and furniture being $1,850. The appellant claims under a sheriff's deed which he received as the result of the sale on execution. The respondent claims under the deed which she received from the Wolters.

[1] The controlling question is, whether the homestead declaration by Mrs. Wolter was valid. Rem. Comp. Stat., § 552 [P.C. § 7883], provides that the premises included in a homestead must be actually "intended and used for a homestead for the claimants." Section 558 authorizes either the husband or the wife to make the declaration of homestead. Section 559, in specifying what the homestead declaration shall contain, among other things, requires that the claimant shall intend to reside thereon. Rem. Comp. Stat., §§ 552 and 559 [P.C. §§ 7883, 7890], have been construed in Wentworthv. McDonald, 78 Wash. 546, 139 P. 503, and Byam v. Albright,94 Wash. 108, 162 P. 10, as having reference only to the "qualifications of the claimant to assert a homestead right at the time of filing the homestead declaration, and not to the continuing of such right thereafter."

The question, then, is reduced to whether Mrs. Wolter, at the time she made the declaration of homestead, actually intended that the property should be used for a home. Before it could be determined that the homestead was not valid, it would be necessary to find that Mrs. Wolter, in making the selection, had acted in bad faith. The fact that, in a comparatively short time after the sale of the property to the respondents, the Wolters moved from this state to the state of California, taken in connection with the circumstances of the sale, would not sustain an inference that the declaration of homestead was made in bad faith. The attitude of Mr. Wolter, as indicated by the letter from the Los Angeles attorney and his attempt to vacate the judgment, is only material as bearing upon the intent of Mrs. Wolter. As against these facts, it appears that on March 10, 1924, Mr. Wolter registered as a voter in the city of Everett.

The appellant's position, at the time he obtained his judgment, is hardly consistent with his position in this proceeding. In that action, he necessarily took the position that the domicile of Mr. Wolter had not been moved to California. If that be true, then the fact that the property was sold soon after the declaration of homestead was filed and that the Wolters departed from the state would not be a controlling circumstance to show bad faith.

The judgment will be affirmed.

MACKINTOSH, C.J., FULLERTON, ASKREN, and HOLCOMB, JJ., concur.